R v Garner & Webb - [2020] SADC 143

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GARNER & WEBB
Criminal Trial by Judge Alone
[2020] SADC 143
Reasons for the Verdicts of Her Honour Judge Fuller
15 October 2020
CRIMINAL LAW
PARTICULAR OFFENCES – OFFENCES OF A PUBLIC NATURE – BLACKMAIL – ATTEMPT TO DISSUADE WITNESS – ATTEMPT TO PERVERT THE COURSE OF JUSTICE
OFFENCES AGAINST THE PERSON – ASSAULT
The accused were members of the Rebels Motorcycle Club and known to each other. It was alleged that Garner attended the complainant’s house in his Rebels colours and on a motorbike. Once there he threatened to petrol-bomb the complainant’s house and take his car unless the complainant arranged for his son to pay an outstanding drug debt owed to Garner. He also punched the complainant’s other son before leaving. The complainant immediately reported the matter to police and the same day Garner was arrested and remanded in custody. The accused Garner was charged with assault and blackmail. The next day the accused Webb attended the complainant’s house and told him that Garner had sent him and told him to ‘drop the charges’ or there would be ‘repercussions from the club.’ Webb was charged with attempting to dissuade a witness. The prosecution argued that if Webb was found not guilty of that charge, he should be found guilty of the statutory alternative of attempting to pervert the course of justice.
Verdict: Accused Garner - not guilty of blackmail, guilty of assault.
Accused Webb - not guilty of attempt to dissuade witness, not guilty of attempting to pervert the course of justice - statutory alternative not available – facts found proved and findings made fall fairly and squarely within ambit of s 248 (1) (b) Criminal Law Consolidation Act.
Criminal Law Consolidation Act 1935 ss 15(5), 20(3), 172(1), 241, 244(3), 248(1)(a), 248(1)(b), 256(1), 256(2); Evidence Act 1929 (SA) ss 34P, 34P(2)(a), 34R, 34R(1); Juries Act 1927 s 7, referred to.
R v Gardi [2015] SASC 186; Police v Laughton (2012) 113 SASR 132; R v McGee (2008) 102 SASR 318; R v Rogerson (1992) 174 CLR 268; R v Hamnett (2018) 132 SASR 153; R v Cluse (2014) 120 SASR 268; R v Landon [2011] SASCFC 121; Perara-Cathcart v The Queen (2017) 260 CLR 595, considered.

R v GARNER & WEBB
[2020] SADC 143
Background

The accused were arraigned before me on the following Information:
Dylan John Garner was charged with the following offences:
The Information
Statement of Offence
Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Dylan John Garner on the 23rd day of December 2018 at Davoren Park, assaulted BHJ.
Statement of Offence
Blackmail. (Section 172(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Dylan John Garner on the 23rd day of December 2018 at Davoren Park, menaced NAJ intending to get him to submit to a demand, namely to pay $5000.00.
John Trevor Webb was charged on the same Information with the following offence:
Statement of Offence
Attempting to Dissuade a Witness. (Section 244(3) Criminal Law Consolidation Act, 1935)
Particulars of Offence
John Trevor Webb on the 24th day of December 2018 at Davoren Park, attempted to dissuade NAJ from attending as a witness or giving evidence at judicial proceedings.
The plea
The accused both pleaded not guilty to the charges and at their election I heard the trial without a jury. On day four of the trial I raised with counsel the issue of whether count 3 was duplicitous. Counsel for the accused Webb then called upon the prosecution to elect as to whether it was alleging that the accused Webb attempted to dissuade NAJ from attending as a witness or giving evidence at judicial proceedings. The prosecution elected to proceed with the allegation that the attempt to dissuade related to attending as a witness at judicial proceedings.[1]
[1] T 251.
I now publish my reasons for the verdicts I am about to deliver.
Elements of the offence
Each element must be proved beyond reasonable doubt.
The elements of the offence of blackmail as they relate to the facts of this case are:
1.     The accused Garner made a demand of NAJ.
2.     The accused Garner made a threat of harm to NAJ.
3.The threat was unwarranted, in that either, if the threat was carried out,         the conduct would amount to a serious offence[2] or, alternatively the making of the threat in all the circumstances was improper according to the standards of ordinary people, and it was known by the accused Garner to be        improper according to those standards.
4.The threat would be taken seriously by a reasonable person of normal stability and courage, or alternatively that NAJ in fact took the threat seriously because of a particular vulnerability known to the accused Garner.[3]
5.The threat was made by the accused Garner with the intention of getting NAJ to submit to the demand.
[2]    A serious offence means an offence punishable by imprisonment.
[3]    The prosecution did not rely upon the alternative limb of this element, namely that NAJ took the threat serious because of a particular vulnerability known to the accused.
The elements of the offence of assault as they relate to the facts of this case are:
1.The accused Garner applied force to BHJ by punching him in the head.
2.The application of force was deliberate, that is, it was intended by the accused Garner. It must be proved beyond reasonable doubt that it was a deliberate and intentional punch to the head of BHJ.
3.The application of force was without the consent of BHJ.
4.The application of force was unlawful. The evidence of the accused Garner in this case raises the defence of self-defence, namely that he was defending himself. Section 15 (5) of the Criminal Law Consolidation Act 1935 (CLCA) provides that if a defendant raises a defence under s 15 (self-defence) the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Section 15 CLCA provides:
(1) It is a defence to a charge of an offence if—
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
The elements of the offence of attempting to dissuade a witness as they relate to the facts of this case are:
1.At the time of the alleged offence, NAJ was or may have been required at some time in the future to be a witness at judicial proceedings.[4]
2.The accused Webb knew that NAJ was or may be required to attend as a witness in judicial proceedings or he was recklessly indifferent as to that matter.
3.The accused Webb intentionally did an act to attempt to prevent or dissuade NAJ from attending as a witness at judicial proceedings.
4.The judicial proceedings were in progress or were to be, or might have been, instituted at a later time.
5.The accused Webb had no lawful authority or reasonable excuse for his action.
[4] Judicial proceedings is defined in s 237 CLCA as meaning ‘proceedings of any judicial body’.
If I am not satisfied that the accused Webb is guilty of the offence of attempting to dissuade a witness, I must consider the alternative offence of attempting to pervert or obstruct the course of justice or due administration of the law.
Section 256 (2) CLCA provides:
(2) Where-
(a)a person charged with an offence against any of the preceding provisions of this Part is found not guilty of the offence charged; but
(b)the court is satisfied that the accused is guilty of an offence against subsection (1),
The court may, if the maximum penalty prescribed for an offence against subsection (1) is the same as or less than the maximum penalty prescribed for the offence charged, find the accused guilty of an offence against subsection (1).
Section 256 (1) CLCA provides:
(1)A person who attempts to obstruct or pervert the course of justice or the due administration of the law in a manner not otherwise dealt with in the preceding provisions of this Part is guilty of an offence. [Emphasis added]
If I am not satisfied that the accused Webb is guilty of the offence of attempting to dissuade a witness, but I am satisfied that he attempted to obstruct or pervert the course of justice or the due administration of the law, I cannot find him guilty of the alternative offence under s 256 if the same evidence and findings relied upon to establish a breach of s 256 would establish an offence under any of the preceding provisions of Part 7 CLCA and the circumstances establishing a breach of one or more of the preceding provisions also establishes the breach of s 256 (1).[5]
[5] Police v Laughton (2012) 113 SASR 132.
Voir Dire
The accused Garner filed a Rule 49 notice in which orders were sought for the exclusion of the following evidence:
1.Any evidence regarding dealings or meetings between Lyndsay Garner on the one hand and any of TJ, BHJ and NAJ in the absence of the first accused.
2.The hearsay evidence contained in paragraphs 11, 14, 16, 18, 19, 20, 21, 22 and 41 in the statement of BHJ dated 23 December 2018 and in paragraphs 12 and 14 in the statement of NAJ dated 23 December 2018.
3.The material contained in annexures NJOOO-A and GPC01-A annexed to the statement of Detective Mark Chilman dated 12 June 2019.
4.The evidence of Detective Sergeant Michael Reinhardt.
During the prosecution opening, it became apparent that the evidence referred to in paragraph 1 of the Rule 49 notice constituted discreditable conduct which was being led by the prosecution under s 34P (2) (a) Evidence Act 1929 as context and background. It was initially agreed by counsel for the accused Garner, and Mr Williams for the DPP, that I would commence the trial and receive all disputed evidence de bene esse. However, after the trial commenced, and when the prosecution called Detective Senior Sergeant Reinhardt, it became apparent that the evidence to be adduced from Detective Reinhardt was also discreditable conduct evidence and I determined to conduct a voir dire hearing during the trial and then rule upon the admissibility of his evidence in respect of each accused.
I ruled that Detective Reinhardt was qualified to give evidence of the activities and memberships of outlaw motorcycle gangs operating in South Australia, including the Rebels Motorcycle Club. Although this has been referred to as expert or opinion evidence it is more properly described as evidence of facts learned by an experienced officer in the course of his experience and admissible for this purpose: R v Cluse (2014) 120 SASR 268.[6] However, I ruled that the probative value of his evidence did not substantially outweigh its prejudicial effect and that it was not admissible against the accused Garner. I ruled that the probative value of the evidence substantially outweighed its prejudicial effect in relation to the accused Webb and admitted it against him. When I delivered my ruling, I described it as a summary of my reasons and reserved the right to expand upon the summary when I published my reasons for the verdicts. I consider it necessary to add the following observations which should be read in conjunction with my ruling.
[6] At [2] – [15] per Kourakis CJ and [43] per Vanstone J.
In ruling that the evidence was admissible in the case against the accused Webb, I said that ‘it explains what would otherwise be unusual or inexplicable, namely why Mr Webb, who has no apparent association or connection with Dylan Garner or the alleged debt, would attend on 24 December 2018 and tell NAJ to drop the charges and threaten repercussions from the club’.[7] I should have said ‘it explains what would otherwise be unusual or inexplicable, namely why Mr Webb, who has no apparent association or connection with Dylan Garner and the alleged debt, would attend on 24 December 2018 and tell NAJ to drop the charges and threaten repercussions from the club’. By the time of my ruling, the prosecution had led evidence of the examination by police of the mobile telephone belonging to the accused Webb. On it was a text message from ‘Wasp’ (said to be the nickname for the accused Garner) on 11 December 2018 relating to a funeral and an unanswered call made to ‘Wasp’ on 23 December 2018.[8] It was an agreed fact that on 20 October 2018 the two accused were observed by police together, both on motorcycles wearing Rebels OMCG colours. It was an agreed fact that there was a photograph dated 22 July 2018 on the account of one Michael Mazzone which showed both accused and Michael Mazzone.[9] This evidence reveals that the accused knew each other and knew each other to be a member of the Rebels. There is no evidence of the time at which the accused Webb attempted to call the accused Garner on 23 December 2018, but it is open to infer that this call was placed as a result of the accused Webb learning from other members of the Rebels of the arrest. The evidence suggests that the connection or association between the accused was linked to their membership of the Rebels and in that way fortified my view that the probative value of the evidence of Detective Reinhardt outweighed its prejudicial effect in the case against the accused Webb.
[7] Ruling 17 September 2020.
[8] P 16.
[9] P 30, [4] and [5].
Overview of prosecution case
The prosecution case centred on the J family. NAJ had two sons, TJ and BHJ and two step-sons, AKT and AJT. TJ became involved in drugs and as a result of his drug-taking “the Rebels came knocking on the door” demanding money.[10] In his opening, Mr Williams said that the two accused, both members of the Rebels, acted individually but on behalf of the club by engaging in intimidatory standover behaviours towards NAJ and BHJ. The accused Garner went to NAJ’s home on 23 December 2018 on his Harley Davidson, wearing his Rebels ‘colours’ and riding a motorcycle which had a Rebels logo affixed to it. When he arrived, NAJ, BHJ, AKT and AJT and another person, CJM, were there paving the driveway. The accused Garner demanded $5000 which he said TJ owed him. During a confrontation with NAJ the accused Garner punched BHJ and attempted to extort the money from NAJ, by threatening that his house would be fire-bombed and his car taken if the money was not paid. This was not the first time that the accused Garner had attended NAJ’s home; the accused’s brother Lyndsay Garner had attended on earlier occasions demanding that TJ pay money and the accused Garner and his brother Lyndsay had also attended together. As a result of these earlier visits, NAJ gave TJ $5000 on two separate occasions for him to pay off the debts.
[10] Prosecution opening, T 2, 16-19.
After the confrontation on 23 December 2018, in which BHJ was punched, NAJ reported the matter to police who attended and took statements from him and BHJ. The accused Garner was arrested at his home address later that day and his house searched and a number of items seized. He was remanded in custody.
On 24 December 2018, NAJ was at his home with AKT, installing CCTV cameras. The accused Webb drove to NAJ’s home in a white Toyota dual cab utility. He walked up the driveway and approached NAJ. He said, “Can I talk to you?’ and NAJ said “yes”. The accused Webb then said “Dylan sent me. You’ve put charges on him, he’s in gaol. If you drop the charges there’ll be no repercussions from the club. If you don’t, there will be repercussions from the club’. NAJ then told the accused Webb, “Mate, I’ve given him $10,000. We’ve got no more money. He assaulted my son”, to which the accused Webb replied, “That’s Dylan’s business”. As the accused Webb was leaving, NAJ asked him what his name was, and he said “Junior”.
General directions
The accused elected for trial by judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v Gardi,[11] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities; see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR; and AK v Western Australian (2008) 232 CLR 438 per Hayden J.
[11] R v Gardi [2015] SASC 186.
The general directions were summarised by Lovell J in R v Gardi. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
In this case the accused Garner elected to give evidence and the accused Webb elected not to give evidence. As to the accused Webb, he was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[12] As to the accused Garner, I am to approach his evidence in the same way as I do all other witnesses who gave evidence in this case. I am entitled to give him what credit I see fit for taking a course that he was not required to take and giving evidence and exposing himself to cross-examination.
[12] Azzopardi v R (2001) 205 CLR 60 at [51] and R v Weetra [2010] SASCFC 52 at [67].
Although the accused were tried together, some of the evidence led against the accused Garner was not admissible against the accused Webb and I have confined my consideration of the case against each accused to the evidence that was relevant and admissible against each accused. Further, I have considered each count against the accused Garner separately.
The prosecution case on all counts.

I now turn in more detail to the evidence led by the prosecution.
The following exhibits were tendered:

P1 ANZ Bank Statement Number 36

P2 Google Street View Taken July 2013

P3 Google Aerial View

P4 2 x Two Finger Gold Rings

P5 Photograph Taken of BHJ on 24/12/2018

D6 CCTV Footage of Gawler Railway Station Car Park dated 24/04/2018

P7 Photograph Taken by AKT

P8 Exhibit Log created by Constable Webb

P9 Black Leather Rebel Vest

P10 Photographic Booklet created by Constable Webb

P11 Index to Photographs in Exhibit

P12 Arrest Photographs of Dylan Garner

P13 USB Containing Relevant CCTV from Dylan Garner’s Address

P14 Still Images from Exhibit P13

P15 Arrest Photograph of John Trevor Webb

P16 Photographs taken of John Webb’s Mobile Phone

P17 Long-Sleeved Top Seized from the Home of Dylan Garner

P18 CV Reinhardt

P20 Introduction into Nomination for the Membership into the Rebels Club (admitted in relation to the accused Webb only)

P21 Exhibit Log Relation to the Search of Mr Webb and his Premises

P22 Booklet of Photographs of Search of Webb’s Premises and Vehicle

P23 Index to P22

P24 Photo Pack ‘A’

P25 Photo Pack ‘B’

P26 Photo Pack ‘C’

P27 Video of Photo Identification Procedure in Relation to P25 and P26

P28 Instagram Photograph

P29 Map of Phone Movement in Relation to Mr Webb

P30 Statement of Agreed Facts

P34 Stills of Coonalpyn Hotel

P35 Arrest Photograph of Dylan Garner

P36 Footage Taken of Coonalpyn Hotel dated 18/10/2017

D37 Commonwealth Bank Statement in the Name of Daniel Matthew Garner February to July 2017

In Exhibit P 30, the following facts were agreed:
Dylan and Lindsay Garner
1.     The accused Dylan Garner was born on 12 January 1988.
2.     Lindsay Garner is the elder brother of the accused Dylan Garner. Lindsay Garner was born on 9 March 1985.
Associations
3.     As at December 2018, both accused were full members of the Rebels OMCG.
4.     On 20 October 2018, the two accused were observed by police together, both on    motorcycles wearing Rebels OMCG colours.
5.On 11 April 2019, police accessed the open source Instagram social media account of Michael MAZZONE, username ’13mazarati13’. A photograph on that account, dated 22 July 2018, shows the accused Dylan GARNER, Michael MAZZONE, and the accused John WEBB. That photograph is Exhibit P 28.
Registration details
6.As at December 2018, the 2005 silver Harley Davidson motorcycle, registration S82 BFY, was registered to the accused Dylan GARNER of 6 Fergusson Terrace Evanston Gardens.
7.As at December 2018, the 2006 white Toyota Utility, registration S606 BPK, was registered to the accused John WEBB of 36 McKinlay Avenue Gawler East.
Call to police
8.     NAJ placed a telephone call to police on 23 December 2018 at 12:43 pm.
Photographic Identification Procedures
BHJ – Photopack A
9.     On 24 January 2019, police conducted a photographic identification procedure with       BHJ.
10.     BHJ was provided with Photopack A, which is now Exhibit P 24.
11.     The photograph at position number 4, selected by BHJ, is a photograph of the      accused, Dylan Garner.
NAJ – Photopacks B and C
12.     On 24 January 2019, police conducted two photographic identification procedures with NAJ, the recordings of which are contained on Exhibit P 27.
13.     NAJ was provided with Photopack B, which is now Exhibit P 25. The photograph at position number 6, selected by NAJ, is a photograph of the accused, Dylan Garner.
14.NAJ was provided with Photopack C, which is now Exhibit P 26. A photograph of the accused, John Webb, was at position number 3. The photograph at position number 2, selected by NAJ, depicts a male not suspected of having had any involvement in these matters, and has no links to the accused, Dylan Garner, or any OMCG including the Rebels.
Mobile telephones
Garner
15.     The Samsung mobile telephone seized from the accused, Garner’s home (Police     Exhibit DG4) was submitted to the Electronic Crime Section of the South Australia       Police, and examined. The contents of the phone were not able to be extracted.
Webb
16.     The Samsung mobile telephone taken from the jeans pocket of John Webb at the    time of his arrest was placed in the White Toyota registration S606 BPK which        was being driven by the accused, John WEBB, at the time of his arrest. This was seized and submitted to the Electronic Crime Section of the South Australia Police,         and examined. Its contents were extracted. It contained a SIM card with the telephone number being 0416 507 547.
17.     As at December 2018, Vodafone mobile telephone service number 0416 507 547 was subscribed in the name of the accused, John WEBB of 36 McKinlay Avenue     Gawler East.
18.     Call Charge Records (CCRs) and Reverse Call Charge Records (RCCRs),    constituting business records, were obtained from Vodafone. A map has been      produced by police based on these records, Exhibit P29. The records, reflected on     the map, show the following activity on 24 December 2018:
a.At 7.34 am, this mobile phone accessed the internet in the vicinity of Gawler South.
b.At 8.59 am and 9.26 am, this mobile phone accessed the internet in the vicinity of Craigmore.
c.At 11.19 am and 11.20 am this mobile phone accessed the internet and received a phone call while in the vicinity of Evanston Park.
19.     24 photographs were taken of the mobile telephone and are Exhibit P16.
Exhibits
20.     The various exhibits seized by police in this matter were properly secured,    recorded (including a description of the item, its location, and a unique identifying     number), and retained by police in accordance with standard police practice,    thereby preserving the integrity of the exhibits.
Distances
21.It is approximately 10 km between the accused Garner’s address of 6 Fergusson     Terrace Evanston Gardens and NAJ’s house. The travel time by road (one way) is approximately 12 minutes.
22.It is approximately 14.4 km between the accused Webb’s address of 36 McKinlay Avenue Gawler East and NAJ’s house. The travel time by road (one way) is approximately 18 minutes.
TJ
23.     TJ and the accused Dylan Garner were both arrested, charged, and both      pleaded guilty, for the offence of fighting in a public place on 24 April 2018, which     was the altercation at the Gawler Railway Station car park captured on the CCTV      footage from the Overway Hotel, Exhibit D6.
NAJ
NAJ was 59 at the time he gave evidence. He had two sons, TJ and BHJ and two step-sons, AKT and AJT. Around 2015/2016 he became aware that his son, TJ, had become involved in drugs and was an ice addict. During this period, TJ and his girlfriend lived with NAJ from time to time. TJ was a tattooist by trade and worked as a tattooist for three outlaw motorcycle gangs, the Rebels, Mongols and Hells Angels. NAJ did not believe that TJ was a member or associate of any of those gangs. In mid-2016, Lyndsay Garner, came to NAJ’s house. He asked NAJ if he recognised him and when NAJ said no, Lyndsay told him that he used to play rugby with his sons TJ and BHJ. Lyndsay appeared friendly to begin with and asked if TJ was home. NAJ said that he would see if TJ was there and if he was, he would bring him out. When he said that, Lyndsay’s demeanour changed and he became a little more aggressive and told NAJ that he was lying and that he knew TJ was inside and told him to ‘get him out’.[13] NAJ then walked down the back of the house where TJ was staying and spoke to TJ through the door. TJ told him to tell Lyndsay that he was not home and he would sort it out later. NAJ then went back to the front door and told Lyndsay that TJ was not there at the moment. Lyndsay said “Don’t lie to me, I know he’s here. Tell him to get out and sort it out”.[14] Lyndsay then told him that TJ owed him $5000 for a drug debt. NAJ then spoke with TJ again and TJ came to the front door and spoke to Lyndsay. They then got into his car and both left. As a result of the conversation with his son, NAJ believed that TJ did owe Lyndsay $5000. After half an hour, Lyndsay returned with TJ and told NAJ that TJ was going to sort out the problem. TJ seemed a little frightened but did not have any noticeable injuries.[15]
[13] T51, 19.
[14] T 51, 39-32.
[15] T 57, 5-9.
A week later, Lyndsay returned. He spoke with NAJ at his front door and told him that he was not scared to go back to gaol and would do what he needed to do to get his money back. A few days later Lyndsay returned, and this time he brought with him the accused Dylan Garner. NAJ said that the accused Garner was making most of the threats and Lyndsay was there ‘to try and intimidate’.[16] TJ was their focus and they asked if he was home. NAJ said:
Dylan would be the one that threatened me, threatened everybody and Lyndsay was the one that said he would back it up. Dylan was the one that wanted the money. Lyndsay was the one who sort of put the heavy on…if they didn’t get the money, they would be taking my car, they’d come back, they’d take stuff from my house. They’d send somebody through my house to smash my stuff up.[17]
[16] T 53, 33-35.
[17] T 54, 3-6; 19-23.
Following the visit by Lyndsay and the accused Garner, NAJ and other family members raised $5000 and he gave it to TJ to clear the debt. NAJ believed that TJ had paid the money over as things went quiet for a couple of months. Lyndsay then returned and told NAJ that TJ owed him another $5000 for a drug debt. TJ was not home at the time but NAJ spoke to him afterwards and as a result he believed that TJ owed money, but only in the amount of $2500.[18] After this, NAJ said the following happened:
Yeah, I’d get visits again of a night-time. They’d be knocking on the door. They would be chasing TJ and they would be wanting $5000, the threats again about the car, my house, my stuff and generally TJ’s wellbeing and, yeah, that went on for a couple of weeks of visits.[19]
[18] T 62, 6-11.
[19] T 60, 7-11.
When asked if the accused Garner was one of the persons who visited on any of these occasions, NAJ said ‘I can’t remember for sure’ but said that it was definitely Lyndsay but he ‘would come around with the threat of Dylan too”.[20] In answer to questions from me, NAJ said that there were two or three visits and ‘they would come generally late at night’.[21] When asked who he was referring to when he used the word ‘they’ he said ‘Lyndsay or – yeah, Lyndsay and Dylan’.[22] When examination then resumed, NAJ gave evidence that it could have been Lyndsay and Dylan and while it was definitely Lyndsay he could not be sure whether Dylan was with him on these occasions.[23]
[20] T 60, 16-22.
[21] T 60, 32-35.
[22] T 60, 36-38.
[23] T 61, 10-14.
During this period, NAJ saw TJ at midnight one night and he was injured and appeared to have been severely beaten and was bleeding heavily.[24] After this, NAJ withdrew $4000 from his bank account and the following day withdrew $1000. He obtained the $5000 even though he believed the debt was only $2500 because he thought ‘it would be the only way to stop them from doing what they had done to my son. I was afraid for his well-being’.[25] An ANZ bank statement showing the withdrawal of the $5000 in three separate transactions on 18 and 19 January 2018 was tendered in evidence.[26] NAJ gave the $5000 to TJ and told him to pay the debt. After this, things went back to normal for a while, but TJ was still using drugs.[27] A matter of months later, there was a knock on the door and Lyndsay was there demanding another $5000. When this happened, NAJ arranged for TJ to move out and live somewhere else.[28] A week later, Lyndsay and the accused Garner turned up at NAJ’s house and demanded to see TJ. He told them that TJ was no longer there because he had thrown him out because ‘of people continuing to come around demanding money’. The accused Garner then told him that he should have checked with them first before throwing out TJ and that if they could not get the money from TJ the ‘debt would come back’ onto him.[29] NAJ could not recall ‘who was saying what, but just that it was the usual threats, and if I couldn’t come up with $5000 to cover it, again with the threats of taking my car, my possessions, violence. Yes, the same as always’.[30] NAJ said that they demanded to speak with TJ and as they were so insistent, he telephoned TJ’s girlfriend and then spoke to TJ. He handed the telephone to the accused Garner who then demanded money and made threats. He heard the accused Garner say ‘Well do you want us to bash your dad while we’re here’ and Lyndsay then looked at NAJ and shook his head ‘as if to say ‘No, that’s not going to happen’.[31] They returned his telephone and told him that TJ had given them the address he was staying and told them to come and see him. They then left. A couple of weeks later Lyndsay returned and said that TJ was not at the address they had been given and told NAJ that it was out of his hands now and that ‘he’s passed it on to the Arabs. And they’re not as understanding as what I am and they will come in and kick my door down and take whatever action necessary’.[32]
[24] T 61, 18-28.
[25] T 62, 13-18.
[26] P1.
[27] T 65, 9-12.
[28] T 65.
[29] T 66-67.
[30] T 67, 19-23.
[31] T 68, 3-9.
[32] T 15-21
Following this incident, the next time NAJ saw TJ was after he had been arrested in April 2018 for an altercation in Gawler with the accused Garner. At this time, NAJ said he was ‘off the drugs’ and was ‘clean’ and had remained clean since.[33] The next time NAJ saw the accused Garner was on 23 December 2018. On that day, NAJ was home with BHJ, AKT and AJT and a friend of theirs, CJM. They were all involved in digging up the pavers in the driveway and relaying them.[34] Around lunchtime, NAJ was inside getting a drink when he heard BHJ call out to him ‘Hey a Rebel’s just pulled up out the front’. NAJ walked out the front and saw the accused Garner get off his bike with his helmet and sunglasses on and walk towards the front porch where he and BHJ were standing. He was wearing two, two finger gold rings[35] and a Rebels vest[36] and dark pants. The accused Garner said ‘Your son owes us $5000, you should never have got him out of the house without checking with us’. NAJ described the accused Garner as ‘screaming and ranting’. Garner said that he had had a run in with TJ and TJ had been shooting his mouth off and they had had trouble and ‘he should knock my fucking teeth out because of the trouble he had with TJ and he wanted his $5000, he was getting quite worked up about it, I was expecting him to throw a punch at me’.[37] NAJ told him ‘we have no money, we’ve come up with $10,000’ and BHJ said ‘we can’t get money from anywhere else, we’ve borrowed money, the well’s dry’. NAJ said that the accused Garner then threw a punch at BHJ in the cheek/lip area. NAJ then put a hand on BHJ to stop him from taking it further. At this stage Garner was backing off towards his bike ‘screaming that I’ve got a week to come up with the $5000 or he’ll be back with a crew, he’ll take my car, he’ll fire bomb my house…’[38] Garner then got on his bike and revved it and left rode off. BHJ had a split lip and was bleeding slightly from the mouth and there was some swelling. NAJ took a photo of BHJ’s face the next day.[39] NAJ said that before being punched, BHJ was calm and that no one was being aggressive towards Garner. After Garner left, NAJ spoke to BHJ about what they were going to do and how they were going to clear it up. As they had no money and no other options, they decided to ring the police.[40] NAJ gave a statement to police on 23 December 2018 and told them that he was willing to attend court if necessary.[41]
[33] T 68-70
[34] T 70-71
[35] P4
[36] P9
[37] T 72.
[38] T 72, 35-37.
[39] P 4.
[40] T78. It was an agreed fact that NAJ telephoned police at 12.43pm on 23 December 2018.
[41] T 80, 24-30.
On 24 December 2018 NAJ was at home. Around 10.30am he and AKT were installing security cameras out the front of his house. A white ute pulled up and a man got out. He was described as ‘medium height, stocky, olivy skin…just your average guy’ wearing a pair of jeans with rips in them and a T-shirt with something written on it starting with ‘E’ got out. NAJ gave this evidence:
… the car pulled up across the road and he’s walked back to us and ‘Can I talk to you?’ and I said ‘Yes’. He said ‘Dylan sent me. You’ve put charges on him, he’s in gaol. If you drop the charges there’ll be no repercussions from the club. If you don’t, there will be repercussions from the club’. I told him ‘Mate, I’ve given him $10,000. We’ve got no more money. He assaulted my son’ and he said ‘That’s Dylan’s business’ and he’s just here to basically pass the message on…As he was leaving I said ‘What’s your name’ and he said ‘Junior’.[42]
[42] T 80, 3-11, 15-16.
The man then left, and NAJ telephoned the police. Some time later he participated in a photo-identification procedure and was asked if he could identify the person he knew as Dylan Garner. He selected an image which was a photograph of the accused Garner.[43] He participated in another photo-identification procedure and was asked if he could identify the person who called himself Junior. He selected an image that was not a photograph of the accused Webb, but a photograph of a male who had no involvement in or connection to the Rebels.[44]
[43] P 25 and P 27.
[44] P 26, P 30.
In cross-examination by counsel for the accused Garner, NAJ agreed that his sons had a friend called Kaz when they were going to high school. He was not certain whether the accused Garner had visited the house but said he may well have as there were a lot of young lads hanging around at that time. NAJ agreed that Lyndsay Garner may have visited his home around the same time.[45] NAJ said that in 2017 he was living at Davoren Park and had a neighbour, Nathan, two doors away. He has been told that this was the accused Garner’s brother.[46] In 2017, NAJ knew Lyndsay Garner and said, ‘he’d been around’ and he knew that Lyndsay had a brother named Dylan.[47] When asked if he had met Nathan Garner’s partner, Germaine, NAJ said she had crashed into his partner’s car. TJ had mentioned to NAJ that he visited Dylan Garner’s place often.[48] In 2017, NAJ’s relationship with TJ was strained and he had thrown out TJ on several occasions, but he would return because he had nowhere to go.[49]
[45] T 83-85.
[46] T 86, 24-32.
[47] T 87, 33-38.
[48] T 88, 9-11.
[49] T 88, 12-19.
In cross-examination, NAJ said that he could not remember exactly what Lyndsay Garner said the second time he came to his house demanding money. When pressed, he said that Lyndsay made ‘certain threats’ and said that ‘there’s a debt owed and we’ll do what we have to do to get it’ but he could not remember the actual words used.[50] He could not remember whether Lyndsay said what he might do if the money was not paid.[51]He agreed that Lyndsay may have said ‘TJ’s got two days to come up with the money’.[52] NAJ agreed that he told police that ‘on the final occasion Lyndsay came to my house, he gave me an ultimatum, he told me TJ has two days to come up with the money or something would happen’.[53] He was then asked:
QThere’s nothing in your statement threatening you, is there, at this point.
AOnly what I said before that the threats that the money was going to have to come from somewhere, I don’t know if that was a veiled threat or just someone else would have to give him the money.[54]
[50] T 99, 4-11.
[51] T 100, 20-24.
[52] T 100, 34-36.
[53] T 103, 9-20.
[54] T 103, 22-27.
NAJ agreed that it was after this that he gathered the $5000 together and gave it to TJ. When it was put to him that the accused Garner had not been involved at all at that stage and that he had not had any discussion with him about any debt, he said ‘I don’t think so no’. When pressed further about whether there was any contact between him and the accused Garner before the first $5000 was paid, he said he just could not remember.[55] He was then taken to his statement to police and agreed that he did not mention the accused Garner’s name at all in relation to the payment of the first $5000. He then agreed that he had no involvement, no conversation and no contact with the accused Garner in relation to the payment of the first $5000.[56] He was then reminded of his evidence in examination in chief in which he said that on the third occasion Lyndsay attended he was with the accused Garner and that Garner was making most of the threats. He said that he was ‘under the impression’ that the accused Garner was making most of the threats and that he ‘must have the times mixed up’.[57] Eventually there was this exchange:
QAnd you can’t say in relation to that first $5000 that ‘Dylan would be the one that threatened me, threatened everybody, and Lyndsay was the one that said he would back it up’, can you.
ANo I must have been going on hearsay.
QSo you don’t now say that prior to the payment of the first $5000 that Dylan was present making threats.
ANo, I must have been going on what I was told.[58]
[55] T 104.
[56] T 105, 109, 9-11.
[57] T109-111.
[58] T 112, 15-22.

NAJ explained that TJ had told him about conversations he had had with Lyndsay and the accused Garner and that it was difficult to separate conversations he had had with Lyndsay and/or Dylan from what he had been told by TJ.[59]
[59] T 112, 24-34, 113, 33-38.
NAJ agreed that he did not tell police that TJ was frightened after going for a drive with Lyndsay in his car but maintained that TJ was frightened of the accused Garner.[60]
[60] T 114-115.
When cross-examined about the visits by Lyndsay in relation to the demand for payment of the second amount of $5000, NAJ said that the accused Garner ‘would have been there for some of them, yes’.[61] He rejected the suggestion that he did not see the accused Garner until after January 2018 when he had paid the second amount of $5000.[62] He said that the accused Garner came over not long before he withdrew the money from his bank account. It was some time between early evening and 11.30pm. He did not notice whether the accused Garner had a walking stick or crutches or was limping.[63]
[61] T 116, 5-9.
[62] T 161, 1-21.
[63] T 161-162.
NAJ was shown P6, CCTV footage depicting an altercation between TJ and the accused Garner in the Gawler Railway station carpark in April 2018. When asked if he could identify his son TJ in the footage as the man ‘doing the upper cuts’ he responded ‘yeah the one that’s defending himself’ and said that is how he would describe his son’s actions.[64]
[64] T 121, 4-9.
NAJ denied that it was after April 2018 that he rang TJ’s girlfriend and TJ spoke to the accused Garner over the telephone whilst Lyndsay was present. He denied that the accused Garner had told TJ that it was a ‘shit go that you are avoiding me and having to have your dad listen to this’.[65] He denied telling the accused Garner that TJ was living at Blanchetown with his girlfriend’s mother but said that TJ told them that he was in Blanchetown but gave an incorrect address.[66] He agreed that he did not ever tell police that TJ was living at Blanchetown but said this was because he was not asked.[67] He could not recall the accused Garner apologising or he and Lyndsay leaving in separate cars.[68] NAJ saw TJ again between April and December 2018 and said he was ‘clean’ for the rest of that year and had been since.[69]
[65] T 123, 29-35, T 126, 24-31.
[66] T 124, 1-12; T 125, 32-38; T 126,1.
[67] T 125, 26-31.
[68] T 124, 27-30.
[69] T 127, 3-9.
NAJ said that on 23 December 2018, the accused Garner appeared to be affected by drugs and ‘was raging’.[70] He denied that the accused Garner had said ‘where’s TJ? He’s been running his mouth about me’ or that he responded ‘not fucking here, I’ve told you that. How much does he owe?’.[71] He denied telling the accused Garner to ‘fuck off’ or that the accused Garner responded ‘Sell your car, I don’t care’.[72] NAJ agreed that the accused Garner had mentioned that TJ had bashed him up with a knuckleduster and caused him severe injury but that he also said ‘I should smash your fucking teeth out for what he did to me’.[73] At the time that BHJ was punched by the accused Garner, BHJ was in the middle, NAJ was alongside BHJ and the accused Garner was on BHJ’s other side. BHJ was a little closer to the accused Garner.[74] It was put to NAJ that BHJ had come running from inside the front door towards the accused Garner in an aggressive manner[75] and that just before the punch, BHJ stepped towards and was advancing towards the accused Garner. He denied this. NAJ said that the accused Garner was screaming, yelling and frothing at the mouth and he and BHJ were just standing there.[76] He said the accused Garner punched BHJ with his right hand.[77] After this happened BHJ stepped forward but did not ‘shape up’ to hit the accused Garner.[78] NAJ put his arm across his chest as he stepped forward because he thought BHJ was going to strike the accused Garner and he ‘didn’t want him to strike a club member and just bring the whole club down raining down on us’.[79] NAJ denied the suggestion that he made up the threat about burning the house down to stop the accused Garner coming back to his house.[80]
[70] T 127, 27-30.
[71] T 128-129.
[72] T 129, 25-27.
[73] T 129, 28-33.
[74] T 92, 24-25; T 94, 3-6.
[75] T 129, 6-9.
[76] T 93.
[77] T 94, 7-9.
[78] T 94, 30-38.
[79] T 95, 1-15.
[80] T 130, 6-9.
In cross-examination by counsel for the accused Webb, NAJ agreed that TJ was wearing knuckledusters when he punched the accused Garner in April 2018.[81] He was taken to his evidence in cross-examination in which he denied that the accused Garner said ‘TJ’s been running his mouth off’ and agreed that in examination in chief he said that the accused Garner said that he ‘had a run in with TJ and TJ had been shooting his mouth off and they had trouble’.[82]
[81] T 132, 21-26.
[82] T 132, 30-38.
NAJ agreed that when he discussed with BHJ what they were going to do, they talked about the possible consequences or repercussions of contacting the police but went on to call the police.[83] He agreed that he was nervous, anxious and a bit afraid on the afternoon of 23 December 2018.[84] That evening he heard banging on the roller door shutter and rattling on the screen door and this increased his level of anxiety to the point that he rang the police and left his house once they had arrived.[85]
[83] T 134, 17-25, T 135, 38; T 136, 1; T 143, 1-8.
[84] T 136, 4-8.
[85] T 141-142.
It was put to NAJ that the man who came to his house on 24 December 2018 never said ‘I’m just here to pass on the message’ but he insisted that those words were said.[86] He was then taken to his statement dated 24 December 2018 and agreed that he made no mention of those words being said and said that ‘must have been the impression I have taken away from him’.[87] It was then put to him that he ‘inferred’ that this man said to him ‘Dylan sent me. He’s in gaol locked up. Did you press charges on him’ and ‘if you drop the charges there will be no repercussions but if you don’t there will be repercussions’. NAJ maintained that this was what was said to him. [88] He denied this version of the conversation put to him by counsel:
[86] T 145-146.
[87] T 146, 9-35; T 147, 1-15.
[88] T 147-148.
QAnd in fact what was actually said to you was he said ‘Hey mate, can I have a word with you?’ and you said ‘Yeah no worries’. You agree with that.
ANo
QAnd then he said ‘Is TJ home?’
ANo.
QAnd then you said ‘No, he doesn’t live here anymore’.
ANo.
QAnd then he said ‘What’s going on between him and Dylan? I heard they had another fight. I’m sick of these fights. It’s Christmas Eve. Nobody wants to be locked up over Christmas. Every time they fight there’s always trouble. Can they just sort it out for fuck’s sake?’.
AThat would be slightly ridiculous. No that’s not what was said at all.
QYou said ‘They never had a fight. Dylan came here yesterday. My eldest son got punched in the face. He demanded money from me. I’ve got nothing’ and that’s what you said to him, isn’t it?
AThat’s basically what I said to him, yes. As I have been saying, they wanted money and we couldn’t come up with any more.
QAnd then he said ‘That’s not what I’ve heard. I don’t know anything about your other son’ and then you said ‘That’s what happened’.
ANo.
QSo it wasn’t you who told him that BHJ got punched in the face.
AYes it was me that told him that BHJ got punched. The rest of what came out of you there was fantasy. That’s not what was said at all.
QAnd then he said ‘Well that’s Dylan’s business, nothing to do with me, but they need to sort their shit out’.
AThey said ‘That’s Dylan’s business’.
QAnd then he said ‘Get TJ to contact me’ and then you said ‘What’s your name?’ and then he said ‘Junior’.
ANo.
QAnd that there was no reference to any club at all.
AThere was.[89]
[89] T 148-149.
BHJ
BHJ gave evidence that in 2016 his younger brother TJ was living with him from time to time. He knew that TJ was on drugs from speaking with him and seeing him under the influence of drugs.[90] BHJ first met Lyndsay Garner when he was 14 and in high school. Lyndsay used to catch the train to school and also played rugby with him. He knew he had a brother Dylan but he was younger and so he did not really know him.[91]
[90] T 166.
[91] T 167, 15-29.
He saw Lyndsay at his father’s house in early 2017 when he went to visit his father after work. Lyndsay was parked in a white car out the front of his father’s house and his father came out of the house and introduced him to BHJ because he did not at first recognise him.[92] Lyndsay said that he was waiting for TJ and BHJ waited outside for him with Lyndsay. TJ eventually came out and went for a drive with Lyndsay.[93]BHJ was still there when they returned, around half an hour later. TJ had a cut lip and was bleeding from the mouth.[94]Lyndsay explained that TJ owed him $5000 and that is why he had been hit. He said that TJ had got some ‘meth’ from him and had not done the right thing. This was the first time BHJ had heard about a drug debt.[95]A couple of days later, BHJ, his mother and father gathered up $5000 and gave it to TJ to pay off the debt. He was there when the money was handed to TJ. A car pulled up out the front of the house and TJ walked out with the money and returned saying that everything was sorted.[96]
[92] T 167, T 168, 22-35.
[93] T 168, 18-20.
[94] T 169, 18-33.
[95] T 170, 1-13.
[96] T 170, 2-38; T 171, 1-26, T 173, 33-36.
After this, BHJ distanced himself from TJ but would see him at his father’s house occasionally.[97] On one occasion, a couple of months after the debt was paid, he saw TJ had cuts across the top of his nose and swelling to his face. Later he found out that TJ had been arrested in relation to an altercation that he understood had occurred in April 2018.[98]
[97] T 172, 18-23.
[98] T 174, 13-22.
On 23 December 2018, BHJ was at his father’s house with AJT and AKT and CJM, helping him pave the driveway. TJ was no longer living there and BHJ had not seen Lyndsay at his father’s house again. He had not seen the accused Garner in person during that time but had seen a picture of him on TJ’s Facebook page.[99] Around midday he saw a motorbike ride past and the rider was wearing a vest with a Rebels patch on it.[100] When he heard a motorbike pull up at the house, he was inside with his father looking for a hat.[101] The rider was wearing full black attire, motorcycle helmet and goggles or glasses. It was the same motorbike that had ridden past five minutes earlier. BHJ and his father were still inside and his father said ‘Maybe we should go to check to see if everything’s okay’ and they went outside. At this stage, the rider was coming across the yard as they were exiting the front screen door.[102] The rider was wearing two golden two finger rings. The rider started to speak to NAJ and said that TJ had been at a pub mouthing off about him and that he was not going to stand for it much longer. He then said that TJ still owed him money and then started to get more aggressive and less coherent.[103] BHJ then gave this evidence:
AHe mentioned that he should knock my dad’s teeth out like TJ had done to him and that, yeah, TJ had still owed him a debt and, yeah, ‘Where was TJ?’ We obviously didn’t know where TJ was but we were then to cover the debt. That’s when he mentioned TJ.
QWhat specifically can you recall him saying about you needing to cover the debt.
AHe mentioned that the debt was now on me and my father, as TJ still owed him money, and that if his brother had a debt, then he would have to cover it, yeah. He was very, very up and down, I would say, ranting pretty well.
…
AWe did try and explain that we didn’t have anything to do with TJ and hadn’t seen him for a year or so, or for about a year and we basically – yeah we didn’t have any money and we didn’t want anything to do with the debt.[104]
[99] T 174-175.
[100] T 175, 30-33.
[101] T 175, 27-29.
[102] T 176-177.
[103] T 177.
[104] T 178, 13-34.
BHJ said that his father was quite calm but a bit nervous and he was the same. The rider was about half a metre from him. As they were explaining that they did not want anything to do with the debt, BHJ felt something impact the side of his face and his glasses flew off and he blacked out a little bit. He assumed he had been punched in the mouth. NAJ asked the rider to leave and the rider walked across the front yard still screaming and then got on his bike and took off. As he was walking away he was saying that he would be back within a week if they did not pay the debt and he would petrol bomb the house and take their cars. [105]After he had been punched, NAJ grabbed him with both of his arms in a hugging way, in case he tried to retaliate.[106] After the rider left, BHJ spoke with his father about what they should do and shortly afterwards they rang the police.[107]When shown P5 he agreed there was some swelling and some scabbing or grazing to his top lip. He said he assumed it was caused by the rings the rider was wearing.[108]It was when the rider started talking about an altercation with TJ that he formed the belief that he was Dylan Garner.[109]
[105] T 178-179.
[106] T 180, 7-19.
[107] T 180, 23-27.
[108] T 181, 4-12.
[109] T 181, 17-28.
In cross-examination, BHJ said that he had a friend Kaz who lived around the corner. BHJ knew Lyndsay Garner and said that he may have met Dylan Garner in passing but did not remember him.[110] He said that TJ was using drugs in 2016 and 2017 and it was not until late 2018 or early 2019 that he stopped using drugs.[111]He agreed that in the first half of 2017 that his father was not happy with TJ’s drug taking and that it was possible that TJ wanted to leave home but did not have the money.[112]
[110] T 184, 7-17.
[111] T 185, 23-31.
[112] T 186, 20-26.
When BHJ went to his father’s house and saw Lyndsay in the car, his father reminded him that Lyndsay was someone he knew through rugby and it was then that he recognised him.[113] It was put to BHJ that his father told Lyndsay that TJ was not there at the moment, but BHJ said he did not recall that.[114] BHJ thought his father had already had a conversation with Lyndsay prior to BHJ’s arrival because his father told him ‘Lyndsay’s waiting for TJ’.[115]When Lyndsay returned with TJ his demeanour was calm but assertive.[116]
[113] T 187, 18-20.
[114] T 188-189.
[115] T 190, 8-15.
[116] T 191, 18-20.
BHJ was certain that it was only 2 or 3 days after this visit that the $5000 was gathered and given to TJ.[117] He agreed that he told police on 23 December 2018 that it was three weeks later that the money was collected and given to TJ, however he said that this was a ‘typo’.[118]He told Detective Chilman a few days before giving evidence that there was a typographical error in his statement and he was told to explain when giving evidence that it was a mistake.[119] It was put to him that he never told Detective Chilman that there was a typographical error in his statement but instead said ‘I believe I may have made a mistake in my original statement saying that in November 2016, after being told about TJ’s debt, it took three weeks to collect the $5000 from family members when it may have only been three days’.[120] BHJ denied that he said this to Detective Chilman. It was then suggested to him that Detective Chilman had said ‘People’s memories fade over time and certain things can rejig those memories and this issue isn’t a problem and not to worry’. BHJ said he did not remember that, but it was ‘possibly’ said. He agreed that this was not something that the Detective would have said if he had told him it was a typographical error.[121]
[117] T 192, 24-31.
[118] T 193, 13-35.
[119] T 194, 23-30.
[120] T 319, 9-18.
[121] T 319, 19-28.
BHJ said that his father was present when the $5000 was handed to TJ and he went outside and a car pulled up. He denied making this up.[122]
[122] T 197, 4-10.
BHJ was shown the CCTV footage in D6 and identified his brother TJ and TJ’s ex-girlfriend LM.[123]
[123] T 198, 26-32.
When asked if the rider appeared to be under the influence of anything, he said he was not sure. He agreed that he told police that the rider appeared to be under the influence.[124]He said that he was very aggressive and ranting and he could not hear everything that he said. He denied that it was NAJ who said to the rider that he would knock his teeth out like TJ had done to him or that the rider asked NAJ where he could find TJ.[125] He agreed that the rider may have said ‘I wouldn’t be coming here. This is the only place I know how to contact TJ’.[126] BHJ denied the suggestion that the conversation was only between NAJ and the accused Garner. He agreed that he had discussed the incident with his father before coming to court.[127]He agreed that he did not tell police that his father had grabbed him to stop him retaliating but denied that he said this in evidence as a result of talking to his father about the incident.[128]
[124] T 201, 4-8.
[125] T 201, 12-21, 29-30; T 202, 5-10.
[126] T 201, 36-38; T 202, 1-3.
[127] T 203, 20-24.
[128] T 204, 5-27.
BHJ said that his father may have exited the house first and that he moved towards the accused Garner. He agreed that he was concerned at the possibility that the accused Garner may hit his father and said he was just ‘unsettled about the whole situation’. He denied taking a step towards the accused Garner before he was punched.[129] BHJ agreed that the accused Garner had said “TJ had been at the pub mouthing off at me’. He agreed that his father would possibly have said that TJ was not there but denied that his father said, ‘how much does he owe’.[130] It was put to BHJ that the accused Garner never said anything about firebombing or taking cars but he said ‘incorrect also’.[131]
[129] T 205.
[130] T 206, 30-38.
[131] T 207, 9-11.
In cross-examination by counsel for the accused Webb, BHJ said that he was concerned about repercussions ‘of the whole incident’.[132]
[132] T 208, 26-29.
In re-examination, BHJ said he could not recall the exact words he used when he raised the issue of three weeks versus three days with Detective Chilman but he had told Detective Chilman that there had been a mistake in his original statement and that he had signed off on it without clarifying the correct days.[133] BHJ said that in the lead up to the trial he and his father had ‘to a certain extent’ discussed their memories of 23 December 2018.[134] He was then asked:
QHave you gone into detail with him to the point where you know whether or not he remembers things the same or differently to the way you remember things.
ABasically the same, but yes, possibly he remembers things differently.[135]
[133] T 321, 7-13.
[134] T 208, 35-38.
[135] T 209, 1-5.
AKT
AKT gave evidence that he was at his step-father’s home on 23 December 2018 with his step-father, NAJ, brother AJT, friend CJM and BHJ. Around midday he heard a loud motorcycle coming down the street. It went down to the cul-de-sac and then returned and parked on the opposite side of the road. NAJ and BHJ had come out of the house at this time and the rider walked straight up to them. NAJ and BHJ had been in the house for a couple of minutes to get a drink. The rider was wearing a Rebels motorcycle vest, long pants and had gold rings. He was wearing an open face black motorcycle helmet and sunglasses. His first words were ‘Where is he’ and NAJ replied, ‘he’s not here’.[136] The rider was aggressive and NAJ and BHJ appeared confronted and worried.[137] The rider said ‘you owe me 5 grand’ and NAJ said ‘I’ve got nothing’. The rider said ‘you’ve got a week. I don’t care how you get it’. AKT also recalled that the rider said if NAJ did not have the money he would come back and petrol bomb the house and take NAJ’s car.[138] The rider was standing within a metre of NAJ and BHJ. AKT looked away as he was trying to stay out of it. He heard a thump and looked over and saw BHJ holding his mouth and NAJ said ‘You need to leave’. He did not see the punch.[139] NAJ had put himself in between BHJ and the rider and was trying to de-escalate the situation. The rider was walking back to his motorcycle and was still saying things, but AKT could not hear what he was saying. He had left his engine running and it was fairly loud and the noise affected what he could hear.[140]AKT wrote down the registration number of the motorcycle and said it was S82BF1. Afterwards, they were all in shock and NAJ said he had had enough and contacted the police. The police came around and he spoke with them.[141]
[136] T 211, 1-33.
[137] T 213, 26-38.
[138] T 214.
[139] T 215, 29-36.
[140] T 216-217.
[141] T 210, 3-8.

On 24 December 2018, AKT returned to NAJ’s house to install CCTV cameras. It had been intended that they would be installed before the driveway was repaired but because Christmas Day was to be held at NAJ’s house, they wanted to finish the driveway before then.[142]Around midday a tall male wearing a black T-shirt, long pants and sneakers arrived in a Hilux ute. He had olive skin. He came over to the corner of the house and NAJ walked down to meet him at the bottom of the driveway. AKT said that he ‘heard the male driver from the Hilux mention that he’d had a chat – he said Dylan’s been locked up’.[143] NAJ replied, ‘He punched my son’ and the male said that if the charges weren’t dropped there would be repercussions from the club. This was emphasised a couple of times. NAJ then tried to say something to him, and the male replied, ‘That’s Dylan’s business’’. At this time, AKT went inside to get his mobile phone and when he came out the male was still talking to NAJ for a ‘bit’ and then he left. As he was leaving, AKT took a photograph of him.[144]
[142] T 219, 13-26.
[143] T 221, 14-15.
[144] P 7.
In cross-examination by counsel for the accused Garner, AKT said that NAJ and BHJ were both inside the house when the motorbike first arrived at the house. He did not know who came out of the house first, but said they came out together. He agreed that the first thing that the rider said was to ask NAJ where someone was and he asked that on more than one occasion but neither NAJ nor BHJ told him where that person was. NAJ told the rider ‘I don’t know’ and BHJ said nothing. AKT agreed that the rider suggested that NAJ was lying and that all of the conversation was directed towards NAJ. However, when it was put to him that the rider said to NAJ that he was lying about not knowing where this person was, AKT said he did not recall those words.[145] After being taken to his statement to police of 23 December 2018 in which he said ‘the rider continued to try and find out where that person was, telling NAJ not to lie’ he agreed the motorbike rider was asking NAJ where that person was and NAJ was replying that he did not know. AKT also agreed that the rider then said to NAJ ‘stop lying’ but said he could not remember the rider saying that NAJ should stop lying or he would smash his teeth in.[146] He was then shown his statement of 23 December 2018 and agreed that he told police that the rider said ‘he’ll smash their teeth in’.[147] He agreed that this threat could only have been aimed at NAJ and that the rider did not smash NAJ’s teeth in.[148] AKT agreed that he could not hear exactly what the rider was saying as he walked away to his bike but maintained that he said he would come back and petrol bomb the house and take NAJ’s car and that these things were said at an earlier time.[149]
[145] T 23-224.
[146] T 224-225.
[147] T 226, 13-21.
[148] T 227, 1-11.
[149] T 228, 1-28.
In cross-examination by counsel for the accused Webb, AKT agreed that he was concerned that there would be repercussions as a result of the police being called.[150]He agreed that he and NAJ had spoken about possible repercussions from going to the police and he said they were worried, threats had been made and they were unsure what would happen. He maintained that the man who attended on 24 December 2018 spoke about repercussions from the club and denied that he was confusing what the man said with the discussion with NAJ about the repercussions of calling police.[151]
[150] T 232, 30-32.
[151] T 241.
In re-examination AKT was asked if BHJ said anything the entire time the rider was at the house and he said he could not remember.[152]
[152] T 248, 21-25.
AJT
On 23 December 2018 AJT was at NAJ’s house helping him to relay the pavers on the driveway. Also present were BHJ, AKT and CJM.[153] Around midday he heard a motorbike and then saw it ride past and return and park opposite the house about 30 seconds later. He described it as a silver Harley Davidson. The rider dismounted and ‘stormed’ across the yard in an aggressive manner towards the house. He was wearing a mud black helmet, black sunglasses, black steel capped boots, black denim jeans a black T-shirt and a leather vest with the word Rebels written across it and a hand full of jewellery which included gold plated double rings across his knuckles. BHJ and NAJ were in the house but came out to see what the noise was.[154] AJT said that he formed the view that the rider was ‘storming’ in an aggressive manner because he was moving with speed and did not look like he was ‘in a calm sense of mind’.[155] AJT was about two-thirds of the way down the driveway and was behind NAJ, BHJ and the male. AKT was to his left and CJM to his right. He said, ‘I sort of took my attention away at times from my job to see what was going on’.[156]
[153] T 252.
[154] T 253, T 254, 1-3.
[155] T 254, 7-11.
[156] T 254, 13-18.
AJT said that the male came up to BHJ in an aggressive manner and was demanding that they tell him where TJ was. He was using an index finger to point at NAJ and BHJ in an aggressive manner and he was ‘invading their space’. He was within half a metre of them. NAJ and BHJ were completely rational and NAJ said that he did not know where TJ was and that he had nothing to do with TJ. BHJ said that there was no place for TJ on the property and he was unwelcome.[157] The rider said that NAJ and BHJ should know where TJ was given that they were family. He said that TJ had knocked his teeth out and that TJ owed him $5000. He said that if he had relatives that caused trouble he would take responsibility for it and therefore NAJ and BHJ were responsible for TJ’s actions and were required to obtain the money for him. NAJ said that they did not know where TJ was, that they did not have any money, it was none of their business and it had nothing to do with them. As NAJ was saying that the male became agitated. AJT said ‘…then at a moment’s glance I looked up and had noticed that the male swung and hit BHJ with his right hand and it connected somewhere in his mouth. His lip was bleeding afterwards. AJT said that BHJ had not been behaving aggressively before being hit. NAJ then said ‘I think it is time for you to leave, you have no place here’ and then shouted ‘It’s time for you to leave’.[158] Soon after that, the rider left, revving his motorcycle loudly.[159]
[157] T 256, 12-37.
[158] T 257-258.
[159] T 258, 3-10.
In cross-examination by counsel for the accused Garner, AJT did not agree that the conversation was mainly between the rider and NAJ. He agreed that the rider first said ‘Do you know where TJ is’ but said it sounded like it was directed to NAJ and BHJ. AJT agreed that the rider said ‘you have to know where he is, he’s family’ and ‘your son TJ has got himself into trouble’ and ‘he was out at a pub and got himself into trouble’ and ‘TJ owes me money, five grand’ and ‘If my brother got into trouble I would take care of him’ and ‘TJ is your family, now it’s your problem’.[160]
[160] T 261, 15-34.
From his position AJT said he could see all of BHJ’s body and that he was on the left hand side of NAJ and closer to his position. Other than seeing BHJ’s head jolt back from being struck he did not see any other movement. He did not see NAJ put his hands up to stop BHJ going towards the rider.[161] AJT was not watching the rider interacting with NAJ and BHJ the entire time. When he was not watching, he was continuing with his job of screeding the sand.[162] When NAJ raised his voice and said it was time for the rider to leave he said something over NAJ’s voice and then left soon after. He could not hear what the rider said.[163]
[161] T 262.
[162] T 264, 18-27.
[163] T 264, 31-36.
CJM
On 23 December 2018, CJM was at NAJ’s house helping with some paving and landscaping. He was with his friends, AJT and AKT. He heard a motorcycle which was really loud and then he saw it riding pretty slowly past the house; it went past and then came back.[164] The rider parked out the front of the house they were working at and walked towards BHJ. He had tattoos on his neck, hands and wrists and was wearing a helmet, long sleeved shirt and vest with Rebels written on it. He had large jewellery on one of his hands which was a gold square ring.[165] He walked up to BHJ ‘just normal’ but as soon as he started talking to BHJ he was being very aggressive and started yelling. At this stage BHJ was just outside the front door.[166] NAJ was inside but then came out and stood to BHJ’s left. The rider was standing about half a metre in front of BHJ.[167] The rider was yelling and pointing towards BHJ with his hand in an aggressive manner. He said ‘Where’s TJ’ and BHJ said he did not know where he was, they were not part of it and the rider then said that TJ owed him money.[168]
[164] T 266, 33-36.
[165] T 267, 17-30.
[166] T 267.
[167] T 268.
[168] T 269, 3-24.
CJM described NAJ as pretty calm but a bit defensive because he was being threatened. The rider said something about owing money and threatening to take cars ‘or something like that’.[169]The rider was pointing at BHJ and was getting really aggressive. BHJ remained calm. CJM then continued to work and heard more discussion but could not really hear what they were talking about. He then looked up and saw the rider punch BHJ with his right arm to the left side of BHJ’s face. NAJ then got in between them and told the rider to ‘get out of here, go away’.[170] CJM was asked whether he heard the rider say anything about what might happen if the money wasn’t paid and he said ‘Just about taking cars, that’s all I heard’.
[169] T 269, 33-38; T 270, 1-5.
[170] T 270.
In cross-examination by counsel for the accused Garner, CJM said that when the rider first came up the driveway BHJ was outside and NAJ was inside looking for hats for him, AJT and AKT. NAJ came out as the rider was walking up towards BHJ.[171] He could not say exactly where the motorcycle was parked just that it was in front of the house and he could not really hear anything because it was really close.[172] He agreed that he did not hear all of the conversation, partly because of the sound of the motorbike but also because he was trying to stay out of it and keep working.[173]
[171] T 271, 17-25.
[172] T 271, 27-38; T 272, 1.
[173] T 272, 31-35.
CJM said he was a metre from the bottom right hand corner of the driveway and AKT was no further than 2 metres away. He could not be sure exactly where AJT was.[174] NAJ was standing on BHJ’s right hand side in front of the first pole that held up the verandah and the rider was just in front of BHJ.[175] After the punch, NAJ intervened and got in between BHJ and the rider and told him to leave. The rider did not leave immediately but exchanged a few more words and then left shortly thereafter.[176]
[174] T 273, 19-38; T 274, 1-2.
[175] T 273, 7-17.
[176] T 274, 26-38, T 275.
Police witnesses
Constable Lachlan Webb gave evidence relating to a search of the accused Garner’s home at Evanston Gardens on 23 December 2018. Before doing so he had attended the home of NAJ at 2.30pm and spoke to NAJ and BHJ. He saw that BHJ had some swelling to his lip. He made arrangements for them to attend the Elizabeth Police Station so he could take statements from them. Those statements were taken later that day. Both NAJ and BHJ confirmed that they were willing to give evidence if required. At 7.15pm Constable Webb attended 6 Fergusson Terrace Evanston Gardens with Senior Constable Wyatt. Other police were already in attendance. The accused Garner was located at the address and arrested by Detective Chilman. A search was then conducted pursuant to a general search warrant. A number of items were seized including a black leather Rebels vest,[177] two, two finger rings,[178]a Samsung mobile phone, CCTV Hard drive, black pants, black Rebels Canada T-shirt, black open face helmet and black goggles. Those items were photographed, and an index produced.[179] On Monday 21 January 2019, Constable Webb attended an address and spoke to TJ. He declined to provide a statement in relation to the matter.[180]
[177] P 9.
[178] P 4.
[179] P 10 and P 11.
[180] T 278-286.
In cross-examination by counsel for the accused Garner, Constable Webb said that he took a full and detailed statement from BHJ in which he referred to his brother TJ a number of times. From that statement, Constable Webb understood that the accused Garner had attended at NAJ’s premises in relation to money owed to him by TJ. He agreed that TJ was a central feature of the investigation.[181] Detective Chilman was the investigating officer and he asked him to see TJ.[182] Constable Webb made notes of his attendance on TJ. Those notes were: ‘TJ last spoke-interaction with Garner last year’ and ‘the altercation occurred after Garner stated that he owed $10,000’ and ‘no contact since’.[183]He did not include this information in his statement because it was hearsay and TJ was not willing to provide a statement.[184] He could not recall why TJ was not willing to give a statement and he made no note about this. Constable Webb said that the investigating officer was aware of this information.[185]When he spoke with TJ he did not appear to be under the influence of drugs or alcohol. He did not spend long with TJ.[186]
[181] T 287.
[182] T 288, 1-10.
[183] T 291, 12-20.
[184] T 291, 22-38; T 11-30.
[185] T 292, 1-6.
[186] T 294-295.
Detective Brevet Sergeant Chilman was the investigating officer. He said a number of officers were sent to TJ’s home address to see if he would supply a statement.[187] Constable Webb told Detective Chilman that TJ refused to provide a statement. Detective Chilman then spoke with NAJ on 3 February 2019 about his son’s attitude and NAJ told him that his son did not want to give a statement to police or talk to them at all about the matter.[188]Detective Chilman asked NAJ on a number of occasions whether TJ had changed his mind and each time he was told that he had not.[189] Detective Chilman said that if he knew that TJ had told Constable Webb that he had last spoken or interacted with the accused Garner last year that would have been information of value in terms of corroborating ‘some history’ but only if he was willing to provide a statement.[190] If he had known that TJ was prepared to give Constable Webb that information he ‘probably would have had another crack at him’.[191]If he had known that TJ was prepared to tell Constable Webb that an altercation occurred after the accused Garner told TJ that he owed him $10,000 that would have ‘enticed us to go back and try and make contact with him again to see if he would be willing to provide a statement to police’.[192] Without a statement from TJ that information was not of value to the investigation.[193]
[187] T 298, 32-38.
[188] T 300, 9-23.
[189] T337, 4-7.
[190] T 302, 20-28.
[191] T 300, 1-12.
[192] T 303, 25-33.
[193] T 304, 33-38; T 305, 1-3.
On 23 December 2018, Detective Chilman attended NAJ’s home and took statements from AJT and AKT.[194]He then conducted a door knock of the area but the persons he spoke to said that they did not see anything.[195]He and other officers then went to the accused Garner’s address at 7.15pm. Garner was arrested and his house searched. Photographs were taken of Garner at the charge counter at the police station.[196]CCTV footage from his home was seized and still images were taken from it when analysed.[197] The footage shows the accused dressed in his Rebels vest, and leaving his house on his motorbike at 11.17am on 23 December 2018 and returning at 12.50pm before leaving again at 1.38pm dressed in casual clothes and in a car. He returned at 1.57pm.
[194] T 305, 29-38; T 306, 1.
[195] T 306, 16-31.
[196] T 311; P 12.
[197] P 13 and P14.
Although Detective Chilman was not involved in the arrest of the accused Webb he obtained an arrest photograph of the accused.[198]At the time of his arrest he was wearing blue denim jeans with rips in them.[199]Photographs of his mobile telephone were taken.[200]The phone identification name was ‘Junior’ and the gmail account included the word ‘junior’.[202] There was also a Snapchat account which included a contact named ‘Wasp’ and a data call between Webb’s phone and ‘Wasp’ on 23 December 2018. There is no information regarding the time of that call but the words ‘Wasp couldn’t talk today’ are displayed. There was also a messenger text conversation between Webb’s phone and ‘Waspy’ on 11 December 2018 relating to a funeral.
[198] P 15.
[199] T 329, 16-20.
[200] P 16.
Detective Chilman gave evidence that on the afternoon before BHJ gave evidence he told him that he had made a mistake in his statement and that when he initially said three weeks ‘on reflection he believed it may have been three days’.[203]Detective Chilman told him not to worry and to ‘be truthful and tell the court that he made a mistake’.[204]
[203] T 322, 14-35.
[204] T 322, 37-38; 323, 1.
Detective Chilman was asked to interrogate police business records in relation to the accused Garner and his ability to stand and walk unassisted in 2017. Detective Chilman confirmed that there was a motor vehicle accident in which the accused Garner was injured in May 2017. He also identified that the accused Garner had been arrested by police for attending the Coonalpyn Hotel on 18 October 2017 with other members of the Rebels. He was arrested on 6 December 2017 at his home[205] and a photograph of him was taken.[206] There was no reference to a walking stick or walking aid in the police records of his arrest.[207]Body worn camera footage of police attendance was retrieved and stills were taken from the footage.[208]
[205] T 527, 23-24.
[206] P 35.
[207] T 526, lines 30-33.
[208] P 36.
In cross-examination by counsel for the accused Garner, Detective Chilman agreed that he had no direct evidence about what TJ had done with the money that he had been given by his family.[209] Detective Chilman agreed that he never asked NAJ why TJ did not want to give a statement[210]but he assumed it was because the matter related to an outlaw motor cycle gang.[211]After learning from the prosecutor that the defence case was that it was not a drug debt but a personal debt and that the accused Garner admitted that he was present on 23 December 2018 and punched BHJ, he did not make any attempt to contact TJ.[212]
[209] T 337, 35-37.
[210] T 340, 29-33.
[211] T 340, 35-38.
[212] T 342.
Detective Chilman agreed that it was common practice for members of an outlaw motorcycle gang to put on leathers when riding a bike.[213]
[213] T 343, 15-18.
Detective Chilman said that, in addition to a conviction for fighting, TJ was convicted of possession of a prohibited weapon, a knuckleduster.[214]
[214] T 527, 1-8.
Detective Brevet Sergeant Zetter was responsible for the search of the accused Webb and his home. He first attended at Coombe Street Gawler East where police had pulled over a Toyota utility being driven by Webb. Detective Zetter took a mobile phone from the utility that had been removed by other police from Webb’s pants pocket. He then went to Webb’s home address and searched it. An exhibit log and booklet of photographs was prepared showing the items located, some of which were seized.[215]
[215] P 8, P21.
Expert evidence
Detective Senior Sergeant Michael Bernd Conrad Reinhardt was called as an ‘expert’ witness. Pages 2-8 of Detective Reinhardt’s statement dated 26 March 2020 was tendered on the voir dire: VDP18. The content of those pages was said to be his ‘curriculum vitae’ and the basis upon which it was contended he could give opinion evidence regarding the activities, culture and memberships of outlaw motorcycle gangs in Australia, and in particular the Rebels. Defence counsel did not challenge Detective Reinhardt’s expertise or argue that he ought not be permitted to give evidence of the facts learned by him in the course of his experience in investigating outlaw motorcycle gangs. I ruled that Detective Reinhardt was qualified to give this evidence.[216] VDP18 became an exhibit in the trial.[217]His evidence was given on the voir dire because the parties agreed that the evidence he would give was ‘discreditable conduct’ and counsel for the accused Garner objected to it. At the conclusion of his evidence and after hearing submissions, I ruled that his evidence was not admissible against the accused Garner but was admissible against the accused Webb.
[216] T 382, 29-33.
[217] P 18.

The decision in Hamnett makes it clear that there is a difference between attempting to persuade a person to do something which may have the intended consequence of that person not attending as a witness at judicial proceedings and attempting to dissuade that person from attending as a witness at judicial proceedings.
The words ‘drop the charges’ do not seek to prevent or dissuade NAJ from attending as a witness in relation to the charges that the accused Webb understood the accused Garner was facing. Rather, the words ‘drop the charges’, combined with the threat of repercussions, were intended to induce NAJ to act in a way that might result in the judicial proceedings coming to an end. As the mechanism by which NAJ was to ‘drop the charges’ was not specified and because there are a variety of ways in which that that expression could be interpreted, those words do not, at law, constitute an attempt to dissuade a person from attending as a witness at judicial proceedings.[343]
[343] Had the accused Webb said to NAJ ‘tell the police that you will not go to court and give evidence so the charges can be dropped or there will be repercussions from the club’ that would, in my view, have constituted an offence against s 244 (3).
Verdict as to count 3
I find the accused Webb not guilty of count 3.
The statutory alternative - section 256 CLCA
That is not the end of the matter. Section 256 CLCA provides:
(1) A person who attempts to obstruct or pervert the course of justice or the due administration of the law in a manner not otherwise dealt with in the preceding provisions of this Part is guilty of an offence.
Maximum penalty: Imprisonment for 4 years.
(2) Where –
(a)a person charged with an offence against any of the preceding provisions of this Part is found not guilty of the offence charged; but
(b)the court is satisfied that the accused is guilty of an offence against subsection (1),
the court may, if the maximum penalty prescribed for an offence against subsection (1) is the same as or less than the maximum penalty prescribed for the offence charged, find the accused guilty of an offence against subsection (1).
I have found the accused Webb not guilty of an offence against one of the preceding provisions of Part 7 CLCA. The maximum penalty for an offence against section 244 (3) is 10 years imprisonment. Thus, the two qualifying matters in subs (2) are satisfied. However, the accused Webb cannot be found guilty of an offence against s 256 unless the evidence satisfies me beyond reasonable doubt that he has attempted to obstruct or pervert the course of justice or the due administration of the law in a manner not otherwise dealt with in the preceding provisions of Part 7.
The first question to be determined is whether the facts I have found proved establish that the accused Webb attempted to obstruct or pervert the course of justice or the due administration of the law. If the answer to that question is no, then that is the end of the matter and he could not be found guilty of the alternative charge. If the answer to that question is yes, then I must go on to consider whether the manner in which he had done so is otherwise dealt with in the preceding provisions of Part 7.
In R v McGee (2008) 102 SASR 318, White J observed:
As was pointed out by Deane J in Meissner v The Queen, defining the offence of attempting to pervert the course of justice as the doing of some act which has a tendency to, and which is intended to pervert the administration of public justice does not identify the conduct which may satisfy its central element. The cases show that conduct of quite different kinds may be sufficient, but, so far, the courts have refrained from attempting to define in any exhaustive way the reach of the expression “the course of justice” and the concept of “perverting” the course of justice. In particular, the boundary between conduct which interferes with a police investigation, on the one hand, and conduct amounting to an attempt to pervert the course of justice, on the other, is not clear.
It is established in Australia that the course of justice…does not begin until the jurisdiction of some court or competent judicial authority is invoked…Thus in Australia, a police investigation is not, of itself, part of the course of justice. Accordingly, an interference with, or obstruction of, a police investigation does not, of itself, amount to an attempt to pervert the course of justice.[344]
[344] [302] – [303].
In R v Rogerson (1992) 174 CLR 268, Brennan and Toohey JJ said of the necessary relationship between conduct in relation to a police investigation and subsequent criminal proceedings:
Although police investigations into possible offences against the criminal law or a disciplinary code do not form part of the course of justice, an act calculated to mislead the police during investigations may amount to an attempt to pervert the course of justice. An act which has the tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal or from adducing evidence of the true facts is an act which tends to pervert the course of justice and, if done with intent to achieve that result, amounts to an attempt to pervert the course of justice. It impairs the court’s capacity to do justice in the actual circumstances of the case.[345]
[345] At 283-284.
In the same case, Mason CJ said:
It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed. That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible. In other words, it is enough that an act has the tendency to frustrate or deflect a prosecution or disciplinary proceedings before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceedings has not even been considered by the police or the relevant law enforcement agency.[346]
[346] At 277-278.
Of these passages in Rogerson White J in McGee observed:
These passages from Rogerson indicate that certain conduct in the course of a police investigation, occurring before the commencement of any proceedings, may amount to an attempt to pervert the course of justice. Conduct may amount to such an attempt if it has a tendency to deflect the police from prosecuting a criminal offence, or to deflect the police from adducing evidence of the true facts, or to mislead or frustrate the police investigation or to frustrate or deflect the course of curial proceedings. Of course, in each case the offence is committed only if the accused persons have the requisite intention to pervert the course of justice in pending or possible curial proceedings.[347]
[347] [307] Footnotes omitted.
The accused Garner was arrested on 23 December 2018, and remanded in custody where he remained until and during the trial. There was no evidence as to the specific offences for which he was arrested. I am unable to find that judicial proceedings were on foot on 24 December 2018, but I am satisfied that they were pending or possible at that time.[348] I am therefore satisfied that NAJ was a person who may be involved in judicial proceedings. I am satisfied that when he said the words ‘you’ve put charges on him, he’s in gaol’ the accused Webb believed that judicial proceedings against the accused Garner were pending or possible. I am further satisfied that when the accused Webb said ‘if you drop the charges there’ll be no repercussions from the club. If you don’t there will be repercussions from the club’ this was a threat of violence, in the form of physical injury and/or property damage. I am satisfied that in saying this, the accused Webb intended to frustrate or deflect the course of judicial proceedings that the accused Webb believed were pending or possible, by threatening NAJ with violence, and thereby inducing NAJ to act in a way which might influence the outcome of those proceedings by having those proceedings brought to an end. I am satisfied that the accused’s conduct had the tendency to deflect the police from prosecuting a criminal offence. In other words, I am satisfied that the accused Webb attempted to pervert or obstruct the course of justice.
[348] In argument regarding the applicability of s 241 CLCA, Mr Williams conceded that there was no prosecution on foot as at 24 December 2018.
In light of these findings, it is necessary to consider whether the manner in which the accused Webb attempted to pervert or obstruct the course of justice is dealt with in any of the preceding provisions of Part 7. In other words, does my finding of a breach of s 256 CLCA involve a finding that the accused committed an offence against any of the preceding provisions of Part 7.[349]
[349] Police v Laughton (2012) 113 SASR 132 at [38].
Section 256 is the ‘catch-all’ provision of Part 7. The phrase ‘in a manner not otherwise dealt with in the preceding provisions of this Part’ has been considered by Doyle CJ in Police v Laughton (2012) 113 SASR 132 and before that by his Honour in R v McGee (2008) 102 SASR 318.
The facts in Laughton were that two sisters, Jenine Laughton and Kerrie Laughton, were charged with an offence against s 256 (1). Jenine Laughton had returned a blood alcohol reading above the prescribed amount following a breath analysist test. Her sister Kerrie then attended a hospital and provided a sample of her own blood, pretending to be her sister Jenine. The result of the analysis of her sister’s blood could have been used to rebut the presumption in the Road Traffic Act 1961 that the breath analysing instrument produced an accurate result. The police detected the deception before any proceedings for a drink driving offence were instituted.
A magistrate acquitted both defendants on the basis that because no charges had been laid for the drink driving offence and more steps would need to have been taken before any act would have the tendency to pervert the course of justice, the offence charged had not been committed by either sister. The magistrate was of the view that no offence could have been committed unless and until Jenine Laughton relied upon the blood sample in court or used it to persuade the police not to prosecute her.[350] On appeal by the police, the Laughton sisters filed a notice of contention submitting that the conduct relied upon by the prosecution was ‘dealt with’ in s 243 CLCA (fabricating, altering or concealing evidence) and accordingly, for the purposes of s 256 (1), it was conduct ‘otherwise dealt with in the preceding provisions of this Part’ and no offence against s 256 (1) could be made out.[351]
[350] [14] – [16].
[351] [34].
On appeal, Doyle CJ held that the magistrate erred because the act relied upon could have the tendency to pervert the course of justice when no proceedings have yet commenced, and when none might be commenced.[352]The evidence established that there was an agreement to fabricate evidence, with the intention that the evidence could be used to ‘deflect’ proceedings, or to deceive the court if proceedings were brought.[353]The essence of the offence was the fabrication of the false and deceptive blood sample, which could be so used to deflect or defeat proceedings, and it mattered not that it was unknown at the time of the conduct whether proceedings would be instituted.[354] For these reasons, but for the notice of contention, his Honour would have allowed the appeal by police.[355]
[352] [26].
[353] [23].
[354] [23].
[355] [31] – [32], [47].
Doyle CJ accepted the argument in the defendants’ notice of contention and accordingly held that the dismissal of the Information was correct. His Honour said:
… the facts relied upon to establish a breach of s 256 fall fairly and squarely within s 243 and the circumstances establishing a breach of s 243 also establish a breach of s 256 (1). Accordingly, the conduct relied upon to prove the attempt to obstruct or pervert the course of justice or the due administration of law is ‘otherwise dealt with’ in s 243…
Accordingly, the defendants cannot be convicted of an offence against s 243…[356]
[356] [49] – [50].
In coming to that conclusion, Doyle CJ referred to the arguments advanced in McGee. In McGee, it was argued that if any other section in Part 7 dealt with the topic or subject matter relied upon to establish a breach of s 256, it was ‘otherwise dealt with’. Doyle CJ, with whom White J agreed, rejected that argument. His Honour said:
I do not accept the premise upon which Mr Game’s submission is based. It is not enough that a topic or activity can be identified that can be said to be the subject of another provision of Pt 7, whether or not the person is guilty of a breach of that provision. That approach introduces into s 256 a highly uncertain aspect. The present case illustrates the point. In my opinion, s 243 does not speak to the circumstances relied upon by the DPP in proof of a charge under s 256. But if it is sufficient that a topic or subject matter is dealt with elsewhere, as Mr Game argues, how is that topic or subject matter identified?[357]
[357] [99].
In Laughton a narrower submission was advanced. It was argued, successfully, that if the same evidence and findings would establish an offence against s 243 (fabricating evidence) as was relied on to found the s 256 offence charged, the defendants could not be convicted of the general catch all offence because the very conduct relied upon is dealt with by, and will give rise to an offence under s 243 CLCA.
In Laughton, Doyle CJ acknowledged that there were practical difficulties with this approach. In a prosecution for an offence against s 256 the defence would be likely to raise by way of defence the possibility of a finding of guilt under a preceding provision of Part 7. This could make a trial difficult to manage because a finding that any of the preceding provisions was applicable would suffice for the purposes of a defence. Doyle CJ said those difficulties could be overcome by charging an offence or offences under one or more of the preceding provisions and relying on a finding of a breach of s 256 (1) as a fall back. In this context, his Honour also mentioned the cautionary note he expressed in McGee at [104], a point which he said was not necessary to decide. That cautionary note related to the situation where some of the circumstances relied upon to prove a breach of s 256 might also give rise to an offence under another provision of Part 7.[358] His Honour’s tentative opinion in McGee was that an offence under another provision of Part 7 must, as it were, cover the main ground covered by the offence alleged against s 256, before the commission of the other offence precludes a conviction under s 256.
[358] At [44].
Preceding provisions of Part 7
I have considered carefully the preceding provisions of Part 7 applying the approach in Laughton to the facts I have found proved beyond reasonable doubt and the findings made on those proven facts.
I reject defence counsel’s argument that these facts and findings fit fairly and squarely within s 241 CLCA.
Section 241 CLCA provides:
241—Impeding investigation of offences or assisting offenders
(1)     Subject to subsection (2), a person (the "accessory") who, knowing or believing that      another person (the "principal offender") has committed an offence, does an act with the intention of—
(a)      impeding investigation of the offence; or
(b) assisting the principal offender to escape apprehension or prosecution or to dispose of proceeds of the offence, is guilty of an offence.
(2)     An accessory is not guilty of an offence against subsection (1)—
(a)      unless it is established that the principal offender committed—
(i) the offence that the accessory knew or believed the principal offender to have committed; or
(ii) some other offence committed in the same, or partly in the same,      circumstances;         or
(b) if there is lawful authority or a reasonable excuse for the accessory's action.
(3)     Subject to subsection (4), the penalty for an offence against subsection (1) is—
(a) where the maximum penalty for the offence established as having been       committed by the principal offender is imprisonment for life—imprisonment for a term not exceeding 10 years;
(b) where the maximum penalty for that offence is imprisonment for a term of 10 years or more (but not for life)—imprisonment for a term not exceeding 7 years;
(c) where the maximum penalty for that offence is imprisonment for a term of 7 years or more but less than 10 years—imprisonment for a term not exceeding 4 years;
(d)in any other case—imprisonment for a term not exceeding 2 years or a maximum penalty the same as the maximum penalty for that offence, whichever is the lesser.
(4) Where the offence established as having been committed by the principal offender is not the offence that the accessory knew or believed the principal offender to have committed, the penalty for an offence against subsection (1) is whichever is the lesser of—
(a)        the penalty applicable under subsection (3); or
(b) the penalty that would be applicable under subsection (3) if the offence that the accessory knew or believed the principal offender to have committed were the offence established as having been committed by the principal offender.
(5)     Where—
(a) a person charged with an offence as a principal offender is found not guilty of the offence charged; but
(b) the court is satisfied that another person was guilty of the offence charged (or some other offence of which the accused might on the charge be found guilty),
the court may, if satisfied that the accused is guilty of an offence against subsection (1) as an accessory in relation to the offence charged (or that other offence), find the accused guilty of an offence against subsection (1).
(6)An accessory may be found guilty of an offence against this section whether committed within or outside this State if a court of this State has jurisdiction to deal with the principal offender.
Mr Williams conceded that there was no prosecution afoot on 24 December 2018. [359] I agree with Mr Williams that it has not been proved that the accused Webb knew or believed that the accused Garner had actually committed an offence. Section 241 (2) provides that no offence can be committed unless it is established that the principal offender (in this case the accused Garner) actually committed the offence or a substantially similar offence as that which the person in the accused Webb’s position knew or believed had been committed.
[359] T 677, 14-20.
In closing submissions, neither counsel addressed the application of s 248 CLCA. I raised the potential application of s 248 CLCA with counsel after the hearing had concluded and requested written submissions, which were provided by Mr Williams and counsel for the accused Webb.
Section 248 CLCA provides:
248—Threats or reprisals relating to persons involved in criminal investigations or judicial proceedings
(1) A person who—
(a)        stalks another person; or
(b) causes or procures, or threatens or attempts to cause or procure, any physical injury to a person or property,
with the intention of inducing a person who is or may be involved in a criminal investigation or judicial proceedings, to act or not to act in a way that might influence the outcome of the investigation or proceedings, is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(2) A person who—
(a)        stalks another person; or
(b) causes or procures, or threatens or attempts to cause or procure, any    physical injury to a person or property,
on account of anything said or done by a person involved in a criminal investigation or judicial proceedings in good faith in the conduct of the investigation or proceedings, is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(3) For the purposes of this section, a person "stalks" another if the person does any of the following, in a manner that could reasonably be expected to arouse the other person's apprehension or fear:
(a)         follows the other person; or
(b) loiters outside the place of residence of the other person or some other        place frequented by the other person; or
(c)        enters or interferes with property in the possession of the other person;               or
(d) gives or sends offensive material to the other person, or leaves offensive material where it will be found by, given to or brought to the    attention of the other person; or
(e) publishes or transmits offensive material by means of the Internet or some other form of electronic communication in such a way that the      offensive material will be found by, or brought to the attention of, the    other person; or
(f) communicates with the other person, or to others about the other       person, by way of mail, telephone (including associated technology), facsimile transmission or the Internet or some other form of electronic    communication; or
(g)        keeps the other person under surveillance; or
(h)        acts in any other way.
(4) For the purposes of this section—
(a) a person is "involved in a criminal investigation" if the person is involved in such an investigation as a witness, victim or legal practitioner or is otherwise assisting a law enforcement body with its inquiries; and
(b)        a person is "involved in judicial proceedings" if the person is—
(i)      a judicial officer or other officer at judicial proceedings; or
(ii)     involved in such proceedings as a witness, juror or legal                 practitioner,
whether the proceedings are in progress or are proceedings that are to be or may be instituted at a later time.

Defence counsel argued that, if I were to accept NAJ’s evidence regarding the conversation with the accused Webb, this conduct fell fairly and squarely within the ambit of s 248 (1) (b). It was argued that NAJ was a person involved in a criminal investigation. Further, the evidence of Detective Reinhardt regarding the public awareness of the reputation for violence of OMCG members, including members of the Rebels, meant that the only inference that could be drawn from the words ‘if you don’t drop the charges there will be repercussions from the club’ was a threat of harm or property damage. It was also argued that the conduct fell fairly and squarely within the ambit of s 248 (1)(a) because the accused Webb acted in a way that could reasonably be expected to arouse in NAJ, a person involved in a criminal investigation, apprehension or fear with the intention of inducing him to act in a way that might influence the outcome of the investigation.
Mr Williams made this submission:
Had an offence against s 248 been charged in this case, the admittedly vague threat ‘there will be repercussions from the club’ would have to be proven beyond reasonable doubt to be a specific threat of physical injury to a person or property. So, if it were reasonably possible that the threatened ‘repercussions’ were of some other form, for example possibly a monetary fine, or some form of unwanted but non-violent attention making life difficult for the J family, the offence would not have been made out. That is why s 248 is not well suited to these facts. The situation may well have been different had Mr Webb been alleged to have said ‘drop the charges or else I will bash you’. [Emphasis added][360]
[360] Written Submissions Regarding Part 7 Criminal Law Consolidation Act 1935 at [19].
Mr Williams also contended in relation to s 248 (1) (a) and (b) that the type of activity targeted was conduct which is designed to only indirectly, and only potentially influence the outcome of an investigation or proceedings. He submitted:
The stalking limb adds another layer and further distances the targeted conduct from direct conduct explicitly intended to dissuade a witness from giving evidence in proceedings. It targets conduct which, rather than being directly threatening, is conduct which (merely) might reasonably be expected to arouse apprehension or fear, in an attempt to induce the person to act or not act in a way that (merely) might influence the outcome of an investigation or proceedings.
In a case, as here, where a complainant has given a witness statement resulting in criminal charges and he is threatened with repercussion unless ‘he drops the charges’ that can only be characterised as a direct threat, designed not merely to induce the person to act in a way that might influence proceedings, but rather designed to directly bring about the cessation of the proceedings – a ‘dropping’ of the charges by the witness changing their decision to be a willing witness.[361]
[361] Prosecution Written Submissions in Reply Regarding Part 7 Criminal Law Consolidation Act 1935 at [27] – [28].
The elements of an offence against s 248 (1) (b) are:
·The accused intentionally caused or procured, or threatened or attempted to cause or procure any physical injury to a person or property.
·When the accused acted in this way, he intended to induce a person who is or may be involved in a criminal investigation or judicial proceedings to act or not act in a way that might influence the outcome of the investigation or proceedings.
·The person who the accused intended to induce to act or not act in a certain way was a person who is or may be involved in a criminal investigation or judicial proceeding.
The elements of an offence against s 248 (1) (a) are:
·The accused stalked another person.
·A person stalks another if the person intentionally acts in any of the ways set out in s 248 (3) (a) – (h) in a manner that could reasonably be expected to arouse the other person’s apprehension or fear.
·When the accused stalked another person he did so with the intention of inducing a person who is or may be involved in a criminal investigation or judicial proceedings to act or not act in a way that might influence the outcome of the investigation or proceedings.
·The person who the accused intended to induce to act or not act a certain way was a person who is or may be involved in a criminal investigation or judicial proceeding.
In my view, the facts I have found proved and the findings I have made fall fairly and squarely within the ambit of s 248 (1) (b). In other words, the accused Webb has attempted to obstruct or pervert the course of justice or the due administration of the law in a manner dealt with in a preceding provision of Part 7, namely s 248 (1) (b). Accordingly, by application of s 256 (1) the accused Webb cannot be found guilty of the alternative charge.
I set out again the facts I have found proved and the findings I have made to underscore why I have arrived at this conclusion:
·NAJ was a person who may be involved in judicial proceedings.[362]
·I am satisfied that when the accused Webb said the words ‘you’ve put charges on him, he’s in gaol’ he believed that NAJ was a person who was or may be involved in judicial proceedings.
·I am further satisfied, on the evidence of Detective Reinhardt, that when the accused Webb said, ‘if you drop the charges there’ll be no repercussions from the club. If you don’t there will be repercussions from the club’ the accused Webb was threatening NAJ with physical injury or property damage and that he did this with the intention of inducing NAJ to act in a way which might influence the outcome of those proceedings, by halting or bringing to an end those proceedings.
[362] Section 248 (4) (b) defines a person involved in judicial proceedings as including a person who is ‘involved in such proceedings as a witness’.
Although the expression ‘repercussions from the club’ is of wide ambit and capable of encompassing a considerable variety of behaviour, the evidence does not permit me to find that it was reasonably possible that ‘repercussions from the club’ meant only some form of ‘unwanted but non-violent attention’ or a ‘monetary fine’.
Verdict on alternative charge under s 256 CLCA
Accordingly, I find the accused not guilty of the alternative charge of attempting to pervert or obstruct the course of justice or due administration of the law.

[201] T 330.

[202] T 330.

P1	ANZ Bank Statement Number 36
P2	Google Street View Taken July 2013
P3	Google Aerial View
P4	2 x Two Finger Gold Rings
P5	Photograph Taken of BHJ on 24/12/2018
D6	CCTV Footage of Gawler Railway Station Car Park dated 24/04/2018
P7	Photograph Taken by AKT
P8	Exhibit Log created by Constable Webb
P9	Black Leather Rebel Vest
P10	Photographic Booklet created by Constable Webb
P11	Index to Photographs in Exhibit
P12	Arrest Photographs of Dylan Garner
P13	USB Containing Relevant CCTV from Dylan Garner’s Address
P14	Still Images from Exhibit P13
P15	Arrest Photograph of John Trevor Webb
P16	Photographs taken of John Webb’s Mobile Phone
P17	Long-Sleeved Top Seized from the Home of Dylan Garner
P18	CV Reinhardt
P20	Introduction into Nomination for the Membership into the Rebels Club (admitted in relation to the accused Webb only)
P21	Exhibit Log Relation to the Search of Mr Webb and his Premises
P22	Booklet of Photographs of Search of Webb’s Premises and Vehicle
P23	Index to P22
P24	Photo Pack ‘A’
P25	Photo Pack ‘B’
P26	Photo Pack ‘C’
P27	Video of Photo Identification Procedure in Relation to P25 and P26
P28	Instagram Photograph
P29	Map of Phone Movement in Relation to Mr Webb
P30	Statement of Agreed Facts
P34	Stills of Coonalpyn Hotel
P35	Arrest Photograph of Dylan Garner
P36	Footage Taken of Coonalpyn Hotel dated 18/10/2017
D37	Commonwealth Bank Statement in the Name of Daniel Matthew Garner February to July 2017